Friday, February 09, 2007

Solomon Amendment Amelioration

Every member school of the Association of American Law Schools has a non-discrimination policy that both includes a prohibition on sexual orientation discrimination and applies to employers recruiting on campus. These policies would forbid military employers from recruiting on campus because of the military's "don't ask, don't tell" rules, but under a provision of federal law known as the Solomon Amendment, schools must nonetheless permit the military to recruit on the same terms as non-discriminating employers, or risk losing millions of dollars in federal funds for themselves and the parent universities with which they are affiliated. Last year, in Rumsfeld v. FAIR, the United States Supreme Court upheld the Solomon Amendment against a challenge based on the First Amendment rights to speech and association. The Court reasoned that the presence of military recruiters on campus could not reasonably be understood to communicate a message of agreement by the schools with "don't ask, don't tell." To underscore the point, Chief Justice Roberts, speaking for a unanimous Court, made clear that "[s]tudents and faculty are free to associate to voice their disapproval of the military’s message."

Taking the Chief Justice at his word, students, faculty and administrations at law schools around the country (including Columbia, where I teach), have taken the occasion of military recruitment on campus to express their disagreement both with "don't ask, don't tell" and with the Solomon Amendment. They hold fora, publish letters, and so forth. Some students here at Columbia and, I suspect, at other law schools, have suggested that students who do seek military employment should try to arrange interviews off campus, to show respect for the school's non-discrimination policy. That is a perfectly appropriate suggestion coming from a student group, but what if it comes from a school administration or the faculty? At the urging of a colleague who feared that official discouragement of students from interviewing on campus could be construed as non-compliance with the Solomon Amendment itself, I left this suggestion out of the Columbia faculty letter that I co-wrote. However, this strikes me as far-fetched. All official events protesting military recruitment on campus can have the effect--indeed, may be intended to have the effect--of discouraging students from interviewing with the military recruiters. Official encouragement to interview off campus is just one more form of First Amendment-protected speech by the law schools.

Indeed, one would think that, in the face of the sorts of protests invited by the Supreme Court's opinion in FAIR, military recruiters would prefer to interview off campus. A straight student who wants to serve his country in the JAG Corps but disapproves of "don't ask, don't tell," or simply doesn't want to earn the ire of his classmates, might well forego the interview if it means running a gauntlet of protesters; the same student might well be willing to interview unobserved a few blocks away. Of course, that doesn't mean my colleague was wrong to worry about the way in which official discouragement of on-campus interviewing would be received by the Department of Defense or Congress. An undermanned military fighting wars in Afghanistan and Iraq that fires Arabic language translators because they are gay cannot be expected to act at all rationally when it comes to this issue.


KipEsquire said...

I friend of mine also suggested that gay students could protest by signing up for interviews, clogging the recruiters' schedules, and then casually mentioning on their way out that they're openly gay and asking whether that would be a problem (wink, wink).

Brian said...

The homosexuals at my law school embarrass themselves every time the military comes here. Perhaps they should call on Congress to eliminate the policy, instead of haranguing the military guys.

Michelle R. said...

While I'm not sure what Brian meant by "embarass themselves," I hope it doesn't mean that a person's desire to stand up for First Amendment rights to free speech and Equal Protection rights to non-discriminatory treatment is embarassing. While it is certainly true a the large amount of criticism regarding "Don't Ask Don't Tell" should be directed to Congress, isn't it also true that recruiters are in a prime position to be able to explain to Congress the immediate effects of such a discriminatory ban? While haranguing military recruiters, who are required to go on campuses even where recruitement numbers are low or non-existent, is certainly not the most efficient use of energy, invoking the Solomon decision's encouragement of schools' rights to protest is necessary to keep dialogue open and ensure that the effects of discrimination are given a face. I would also point out to Brian that not all service members are men. Hopefully I'm not embarassing myself.

Adam P. said...

After a long break away from Dorf on Law, I'm happy to return with my two cents (or 5 points)...
1) Brian inadvertently makes a good point. It's not only the "homosexuals" (or even LGBT people more generally) that should be actively protesting Don't Ask, Don't Tell and the SOlomon Amendment. Straight people have plenty of reasons to despise these laws.

2) Laws are affected by means other than direct lobbying of Congress. The most basic reason is that Congress responds to the demands of its constituency. If more people despise Dont Ask Dont Tell and the Solomon Amendment, Congress will act.

"Haranguing" military guys works in its own way. The biggest news in Dont Ask Dont Tell is when straight members of the military- 3 star generals- come out and oppose the policy. When recruiters come back and say that they can't get qualified servicemen because of the ban, people listen more than when its a bunch of LGBT activists.

3) There's a reason why law students in particular should be targetted: they will be running for office, advising conservative Congressmen, and making ludicrous amounts of money. When writing a check to a candidate, maybe they'll remember the protests on campus.

4) Law schools are supposed to be bastions of justice. Yet, law schools daily fail their students. At my school for example, a member of the career services administration regards any protest activity related to the oh-so-ethical campus recruitment process as an annoyance, and violative of the "rights" of students who want to interview with JAG. First, there's no right of on-campus interviewing, it's when that denial is based on one's sexual orientation that it's a problem. But far worse, is that such response from a member of the law school administration shows that people fail to consider Don't Ask Don't Tell in context. if the only discrimination against LGBT Americans was in the military, that wouldn't be so bad. But in reality, that discrimination is pervasive in nearly every aspect of our federal government and American society.

5) Stepping away from my more pragmatic points, and approaching it on a justice level. As privileged law students, even if we don't want to join the military, we have an obligation to every closeted American who does, but can't protest the policy because he's ashamed of who he is.

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